Cyell applies the general conditions of sale, delivery and payment of Mitex, the Dutch Trade Association for retailers in the fashion industry. These MITEX Association (Association of Entrepreneurs in Fashion Retail) General Sales – Delivery – and Conditions of Payment were established in December 2002 in consultation with the Consumers’ Association, within the framework of the Social and Economic Council ’s Self-Regulation Coordination Group (CZ) and entered into force on January 1, 2003. The CZ would appreciate it if these are ever reported that they are done so as a quote from these terms and conditions.
Article 1 Definitions
In these terms and conditions the following terms have the following meanings:
a. Entrepreneur: any natural or legal person that operates a business in the fashion and/or retail shoe industry;
b. Consumer: a natural person not acting in the course of a profession or business, that consumes fashion items and/or shoes as a customer or hands them over for repair to the entrepreneur;
c. Fashion items and/or shoes also includes other items related to these industries in so far as they are sold by the entrepreneur referred to in a.
Article 2 Applicability
These conditions apply to purchase agreements and contracts for the making or alteration/repair of fashion items and shoes, which are concluded between an entrepreneur and a consumer.
Article 3 Quotes
Quotes, unless otherwise stated in the quote or otherwise agreed, have a term of validity of two weeks, counting from the date of receipt.
Article 4 Advance Payment
The entrepreneur is entitled upon entering into the agreement to request an advance payment of up to a maximum of 50% of the purchase price. This must be agreed in writing. Should a purchase price be fully paid, then the entrepreneur shall make a receipt and proof of ownership available to the consumer. Should a written contract and/or receipt/proof of ownership prove absent, the parties can prove the amount paid in advance and/or the amount paid and/or ownership using all legal means.
Article 5 Exchanges
1. Unless otherwise agreed, the consumer is entitled to exchange the purchased fashion item and/or purchased shoes, provided the following conditions are met:
a. Exchanges take place within 14 (fourteen) days (or if otherwise agreed: within the timeframe agreed) from the delivery date of the purchased fashion item and/or shoes on submission of the original receipt or invoice;
b. The fashion item and/or shoes are returned in the original packaging and are still unworn;
2. Also, no exchange can take place of fashion items and/or shoes that are individualised, that is to say have been specifically tailored for the consumer, and that have been ordered from the entrepreneur at the express request of the consumer.
Article 6 Retentions of Title and Right of Retention
1. The entrepreneur can reserve the right of ownership of all fashion items and/or shoes supplied by him. The consumer shall only become owner of the purchased fashion items and/or shoes if he/she has fully satisfied the purchase price and any other amounts owed to the entrepreneur.
2. The entrepreneur may exercise the right of retention, if the consumer falls short of satisfying a due and payable obligation, unless the shortcoming does not justify this retention.
Article 7 Termination, Conversion and Force Majeure
1. Any failure by the company to fulfil its obligations gives the consumer the authority to terminate the contract in whole or in part, unless the shortcoming – given its special nature or minor importance – does not justify this termination and the consequences thereof. The right to terminate only arises when the defaulting party is in default in as far as compliance is not permanently or temporarily impossible.
2. If the entrepreneur is in default, the consumer can claim compensation in writing instead of performance. This conversion is not possible if the shortcoming – given its minor importance – does not justify it.
3. Force majeure shall mean any shortcoming that cannot be attributed to the entrepreneur. Attribution shall not occur if the shortcoming is not due to his fault, either by law, legal act or the generally accepted view that it is for his account.
4. The entrepreneur shall inform the consumer as soon as possible in writing of the force majeure, unless the consumer did not make their address known to the entrepreneur and it cannot be obtained in a reasonable manner.
Article 8 Delivery Deadline
1. Delivery shall be deemed to have taken place when the entrepreneur puts the purchased fashion item or shoes into the consumer’s possession or as the case may be – can put into the client’s possession in the case of a refusal after written notice of default to purchase. After delivery, the risk of the fashion items and/or shoes transfers to the consumer.
2. The delivery deadline serves as the ultimate deadline, unless the parties agree otherwise.
3. If the fixed or expected delivery deadline is exceeded, the consumer shall declare the entrepreneur in default in writing, whereby a reasonable period for compliance is also offered. Reasonable time means the original estimated delivery time with a maximum of one month. If the entrepreneur fails to deliver within this further period, then the consumer has the right to terminate the agreement without judicial intervention and/or to claim compensation. The entrepreneur is only obliged to compensate the damages that are connected in such a way to the transgression, that given the nature of the liability and damages, they can be attributed thereto.
4. Exceeding the final delivery deadline gives the consumer the right to terminate the contract and/or claim compensation without notice or judicial intervention, on submission of the evidence of damages.
5. A notice of default is not required if delivery has become permanently impossible or it otherwise becomes evident that the entrepreneur shall not meet his obligations under the purchase agreement.
Article 9 Guarantees
1. The entrepreneur shall guarantee that the delivered fashion items and/or the shoes conform to the agreement (conformity). The entrepreneur shall moreover guarantee that the fashion items and/or the shoes taking all circumstances into account, feature the qualities that are needed for normal use, as well as for a special use in as far as such has been agreed.
2. The entrepreneur is not responsible for defects that are caused after the delivery of the fashion items and/or shoes by improper use or carelessness, or that are the result of changes that the consumer or third parties to have made to the items delivered.
3. The consumer retains full legal rights under the guarantee, regardless of what is determined in paragraph 1 and 2 regarding the commercial guarantee issued by the entrepreneur.
Article 10 Payment
1. The amount owed to the entrepreneur must immediately be paid to him against proof of receipt, unless the parties agree otherwise.
2. Should an invoice be sent, a payment term of a maximum of 14 (fourteen) days after receipt of the invoice by the consumer shall apply, unless a different payment term is otherwise agreed. The consumer is automatically in default if they have not paid the amount owed on the expiration of this payment term.
3. If the consumer is in default, the entrepreneur shall send him a payment reminder, in which he advises the consumer of the default and in which he also offers the consumer the opportunity to pay the amount due within a term of fourteen days after receipt of this payment reminder.
4. If the consumer fails once more to fulfil his payment obligations, the entrepreneur is entitled to recover the amount due without further notice.
Article 11 Statutory Interest and Extrajudicial Costs
1. Failure to pay an amount due in a timely manner gives the entrepreneur the authority to charge statutory interest, calculated from the date of when the default commenced pursuant to Article 10 of these conditions until the day of payment.
2. Any reasonably incurred additional expenses incurred by the entrepreneur to a minimum of €35 shall be charged to the consumer.
Article 12 The Consequences of Termination
After termination of the agreement, the parties must reverse any activities that have already been performed, such as an advance payment. The entrepreneur is entitled to apply a reasonable deduction by reason of use to the returnable purchase price, in cases where the consumer has worn the purchased fashion items and/or shoes.
Article 13 Complaints
1. Complaints concerning defects in purchased fashion items, shoes and/or other complaints about flaws in the execution of the agreement shall, as soon as possible and no later than two months after discovery thereof, shall be submitted to the entrepreneur.
2. Consumer complaints should preferably be made in writing to the entrepreneur.
3. Prior to being able to exercise his right to complain, the consumer shall at the request of the entrepreneur demonstrate that the agreement to which the complaint relates, has been concluded with the entrepreneur. Consumers are advised to keep the proof of purchase and/or the proof of intake for repair and/or the proof of commission for making the fashion item and/or shoes for this purpose.
Article 14 Disputes
Disputes between the consumer and the entrepreneur on the creation or execution of agreements relating to the fashion items and/or shoes that the entrepreneur shall supply or has supplied, can only be submitted to the competent court.
Article 15 Dutch Law
All contracts to which these conditions have been declared to apply are subject to Dutch law.
Article 16 Deviations
Individual deviations, including additions and extensions of these conditions are only valid if they are recorded in writing between the entrepreneur and the consumer, for example by means of a receipt or order form, or if such a thing had been made demonstrably publicly known in the store.
As a supplement to the Mitex general terms and conditions Cyell also uses the Distance Selling Act.